Cohabitation Results In Less Alimony But Not Termination In New Jersey

May 10, 2018
By
Law Offices of Edward R. Weinstein

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As the divorce attorneys at our East Brunswick, New Jersey law firm keep a close eye on all new cases from the New Jersey Supreme Court which analyzes the “new” alimony law in our state, please find this lawyer’s interpretation of a recent case involving alimony and cohabitation.

In Rivera v. Rivera-Torres, ex-husband Jose Rivera appealed an from an order of the Superior Court of New Jersey, Family Part of Middlesex County, dated October 9, 2015 that denied his post judgment motion to terminate his alimony obligation to his ex-wife Maria Rivera-Torres. The Family Part court had denied his request for termination but awarded him a reduction in his alimony obligation, and set July 31, 2017, as the day when his alimony obligation would end. The New Jersey Appellate Division found that the Family Part judge did not consider the factors enumerated in New Jersey Statute 2A:34-23(j)(3), as they should have, and instead incorrectly considered the factors enumerated in New Jersey Statute 2A:34-23(b). However, the findings of the Family Part’s use of the incorrect statute section were consistent with an analysis under New Jersey Statute 2A:34-23(j)(3), which also supported the denial of Jose’s motion to terminate his alimony obligation. The New Jersey Appellate Division affirmed

Jose Rivera and Maria Rivera-Torres got married in 1986. They divorced in 2012 almost twenty five years later. During their marriage they had five children together, who are now adults and emancipated. A final judgment of divorce was entered, after a trial, on March 2, 2012. According to the final judgment of divorce, Jose was obligated to pay Maria $ 125 a week in permanent alimony.

Jose filed a post judgment motion to terminate his alimony payments on February 24, 2015. He based his motion on the fact that he had retired. He also argued in the alternative that his alimony obligation should be terminated because Maria had been cohabitating with another partner, S.D., since 2007.

Discovery was ordered by the Family Part, and then a plenary hearing was held. At the hearing, testimony established that when the parties got divorced, Jose worked as a driver and warehouse man. At that time he was earning about $ 33,000 a year. Six months after the divorce, in July of 2012, Jose retired at sixty-eight years old. After his retirement, his only source of income was the $ 1,754 a month he received in Social Security benefits. His monthly expenses at the time were around $ 2,454, and as such he started accruing arrears. He owed Maria $ 15,625 in unpaid alimony by October 2015.

When the plenary hearing was held, Maria was sixty years old, and was not yet able to collect Social Security benefits. She did not have a job, and had no other source of income. She lived with S.D. since 2007, and he paid almost all of the expenses related to maintaining the home. The Puerto Rican Association also helped pay for some of the home utilities. Maria contended that the Family Part had determined that she was not romantically involved with S.D. at the divorce hearing. Moreover, at the 2015 hearing. S.D. testified that he was merely helping Maria out of “sheer generosity,” and that they were not romantically involved.

The Family Part issued an order on October 9, 2015 after hearing testimony and considering the evidence submitted at the hearing. The Family Part found that Jose’s testimony was not credible, and that both Maria’s and S.D.’s testimony was credible. As such, the Family Part court: 1) denied Jose’s motion to terminate alimony; 3) found that Jose had shown a valid change of circumstances, and so reduced his alimony obligation from $ 125 a week to $ 85 a week starting February 28, 2015; and 3) set July 31, 2017, the date Maria would become able to legally receive Social Security benefits having reached the age of sixty two, as the date Jose’s alimony obligation would terminate. The court also rejected Jose’s claim that Maria was cohabiting with S.D. Jose appealed.

On appeal, Joses argued that: 1) the Family Part court committed error by failing to apply the rebuttable presumption of alimony termination upon retirement, as enumerated in New Jersey Statute 2A:34-23(j)(1); 2) the September 10, 2014 to New Jersey Statute 2A:34-23, should have applied retroactively to this situation because the judgment of divorce was entered after a trial, and was not part of a settlement agreement; and 3) the Family Part abused its discretion by modifying the alimony obligation to the date the motion was filed, instead of the date he retired. The New Jersey Appellate Division did not find any of these arguments compelling.

The first two arguments that Jose raised were based on a 2014 statutory amendment regarding the modification of existing alimony orders. The amendment added new subsections that listed considerations that a judge has to examine when reviewing a motion to modify or terminate alimony upon retirement. Jose argued that the new subsection (j)(1) should have been applied because he filed his motion in 2015. This subsection creates a rebuttable presumption that an alimony obligation has to terminate when the supporting spouse attains full retirement age, as defined in the statute.

The New Jersey Appellate Division explained however, that the statutory amendment distinguishes between alimony orders entered before the effective date of the order and those entered afterward. Therefore, the original date the alimony obligation was awarded is key. When the alimony award has been established before the effective date of the statutory amendments, as was the case here, subsection (j)(3) applies instead of (j)1). Subsection (j)(3) states that in considering a motion to modify or terminate alimony because of retirement, the court must consider the ability of the supported spouse to have saved for retirement and the following factors: (1) the health and age of the parties at the time the motion is filed; (2) the generally accepted age of retirement in the field of employment of the supporting spouse; (3) the age the supporting spouse becomes able to retire at his place of employment; (4) the supporting spouse’s reasons for retirement; the (5) the reasonable expectations that the parties had about retirement while the were married and at the time of divorce; (6) the supporting spouse’s ability to make support payments after retirement; (7) the supported spouse’s level of financial independence, and the economic impact that the supporting spouse’s retirement will have on him or her; and (8) any other factors that the court may find relevant to the respective financial positions of the parties.

The New Jersey Appellate Division found that the Family Part judge did not consider the factors enumerated in New Jersey Statute 2A:34-23(j)(3), and instead incorrectly considered the factors enumerated in New Jersey Statute 2A:34-23(b). However, the findings of the Family Part’s use of the incorrect statute section were consistent with an analysis under N.J.S.A. 2A:34-23(j)(3), which also supported the denial of Jose’s motion to terminate his alimony obligation.

The appellate panel found that the Family Part made adequate findings regarding the health and of the parties, satisfying factors (1) to (4). The court also made sufficient findings, which were supported by the record, as to factors (5) to (8) that supported a denial of Jose’s motion to terminate his alimony obligation. Jose was in the superior financial position, and Maria did not have any marketable skills to earn money, and could not yet acquire Social Security benefits. She did not have a driver’s license, let alone a care so her job prospects were incredibly limited. Moreover, she was almost completely dependent on S.D. for shelter and other necessities. Furthermore, the Family Part found her testimony that that she was not able to save for retirement to be credible. Therefore, there was sufficient substantial and credible evidence to support the Family Part’s decision to deny Joses’ motion to terminate alimony, and so the New Jersey Appellate Division affirmed the decision of the Family Part.

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